R v Hinschen - [2008] QCA 145

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hinschen [2008] QCA 145

PARTIES:

R
v
HINSCHEN, Beau Ernest
(appellant)

FILE NO/S:

CA No 249 of 2007
SC No 27 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

6 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2008

JUDGES:

Fraser JA, Fryberg and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – where the appellant was convicted after a trial of one count of murder – where the appellant appealed on the ground that the trial judge’s discretion miscarried because the trial judge failed to direct the jury as to the legal effect of evidence about the appellant’s good behaviour – where the appellant submitted that the trial judge ought to have directed the jury to consider the improbability of the appellant having committed the offence in light of the history of his good character deposed to by witnesses – where it was clear that the trial judge’s remarks to the jury drew to the jury’s attention their entitlement to take into account the fact that the evidence of the appellant’s character was inconsistent with the offence – where the trial judge did not express those remarks as a direction – where there was some evidence that might have explained why the trial counsel did not seek such a direction – whether the jury would have failed to give the evidence of the appellant’s good character such weight as it deserved – whether by not making the direction to the jury the discretion of the trial judge miscarried

Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15, cited
Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, distinguished
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, distinguished
TJWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited

COUNSEL:

P J Callaghan SC for the appellant
M J Copley for the respondent

SOLICITORS:

Robertson O’Gorman for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: On 4 September 2007 the appellant was convicted after a trial of one count of murder. He appeals on the ground that the trial miscarried because the trial judge failed to direct the jury as to the legal effect of evidence about his good character.

Such a direction is not required in every case in which character evidence is adduced.[1] The submission for the appellant was that the trial judge's discretion miscarried because the issues in this trial were such as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hinschen

Details

AGLC: R v Hinschen [2008] QCA 145
Case: [2008] QCA 145
Decision Date: 6 June 2008

CaseChat Overview and Summary

The appellant, Hinschen, appealed against his conviction for murder, arguing that the trial judge's discretion had miscarried because the trial judge failed to direct the jury regarding the legal effect of evidence about his good behaviour. The appeal was heard by the High Court of Australia. The central issue in this appeal was whether the trial judge's omission to explicitly direct the jury about the legal implications of the evidence of the appellant's good character constituted a miscarriage of justice. Specifically, the appellant argued that the trial judge should have directed the jury to consider the improbability of the appellant committing the offence in light of his history of good character, as testified by witnesses. The court had to determine if the trial judge's remarks to the jury sufficiently drew attention to their entitlement to consider the inconsistency between the appellant's good character and the offence, even though these remarks were not framed as a formal direction.

The court examined whether the trial judge's remarks adequately addressed the potential weight the jury should give to the evidence of the appellant's good character. The court noted that the trial judge's comments did draw the jury's attention to the relevance of the appellant's character evidence. The court also considered whether the absence of a formal direction resulted in the jury failing to give appropriate weight to this evidence. The court concluded that the trial judge's remarks, though not a formal direction, were sufficient to guide the jury, and there was some evidence suggesting why trial counsel did not seek a formal direction. The court determined that the trial judge's discretion did not miscarry as the jury was adequately informed about the relevance of the appellant's good character.

Based on the reasoning provided, the High Court dismissed the appeal. The court held that the trial judge's comments sufficiently conveyed the legal implications of the good character evidence to the jury, thus there was no miscarriage of justice. Consequently, the appeal was dismissed, and the conviction for murder was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Hinschen [2008] QCA 145
PARTIES:	R v HINSCHEN, Beau Ernest (appellant)
FILE NO/S:	CA No 249 of 2007 SC No 27 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	6 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2008
JUDGES:	Fraser JA, Fryberg and Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – GENERALLY – where the appellant was convicted after a trial of one count of murder – where the appellant appealed on the ground that the trial judge’s discretion miscarried because the trial judge failed to direct the jury as to the legal effect of evidence about the appellant’s good behaviour – where the appellant submitted that the trial judge ought to have directed the jury to consider the improbability of the appellant having committed the offence in light of the history of his good character deposed to by witnesses – where it was clear that the trial judge’s remarks to the jury drew to the jury’s attention their entitlement to take into account the fact that the evidence of the appellant’s character was inconsistent with the offence – where the trial judge did not express those remarks as a direction – where there was some evidence that might have explained why the trial counsel did not seek such a direction – whether the jury would have failed to give the evidence of the appellant’s good character such weight as it deserved – whether by not making the direction to the jury the discretion of the trial judge miscarried Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15, cited Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, distinguished Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, distinguished TJWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited
COUNSEL:	P J Callaghan SC for the appellant M J Copley for the respondent
SOLICITORS:	Robertson O’Gorman for the appellant Director of Public Prosecutions (Queensland) for the respondent